Competence to Consent to Treatment: A Guide for the Psychiatrist

Abstract

During the last decade there has been increasing pressure to legislate legal rights for psychiatric patients especially in relation to consent to treatment. The attempt to subject the irrationality of psychotic illness to the due process of rational laws has caused problems. Revision of the Ontario Mental Health Act (MHA) has already led to situations in which patients are being incarcerated without treatment because of review board decisions regarding dangerousness and competence. The test in the revised MHA is whether the patient is competent to give or withhold consent for treatment. Existing guidelines for determination of competence to consent to treatment rely upon observer judgement and are open to challenge on grounds of subjectivity. The medical directors of the ten Ontario provincial psychiatric hospitals have therefore developed a guide and schema to operationalize the MHA definitions, a novel feature of which is the examination of competence in such a way as to elicit and capture the patient's own responses upon which an objective determination is made.